Appeal from the Circuit Court of Cook County No. 07 CR 14511 (03) Honorable Lawrence P. Fox, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Epstein
PRESIDING JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices J. Gordon and McBride concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Lorenzo Wilson was convicted of first degree murder and armed robbery. On appeal, defendant argues that the trial court improperly admitted, as substantive evidence, audiotaped and handwritten statements from State witness Charles Wilson. Defendant also argues that the trial court abused its discretion by imposing a 75-year sentence for the first degree murder conviction and that the mittimus should be corrected to reflect additional sentencing credit. For the reasons that follow, we affirm defendant's conviction and sentence, with directions to the clerk of the circuit court to correct the mittimus.
¶ 3 In the early morning of June 15, 2006, Corey Ebenezer was shot and killed at Leona's Restaurant in Hyde Park. Erika Ray and Lorenzo Wilson were later charged with first degree murder and armed robbery and were tried in a single trial with separate juries.
¶ 4 Testimony from Leona's Employees
¶ 5 At trial, the jury heard testimony from Justin Twine, Lucio Mastache, and Jason Sline, who worked with Erika at Leona's Restaurant. On the evening of June 14, 2006, a large group came into Leona's and sat down to order food. Twine, who was working as a server that night, testified that there were about 30 people in the party. Erika wanted to serve the entire group, but Corey Ebenezer, an assistant manager, told Erika that she could not handle the table alone. When Erika insisted that she serve the entire party, Ebenezer told her to go home. Erika refused and proceeded to serve the table.
¶ 6 Ebenezer called district manager Augustin Monnarez and informed him that he asked Erika to go home but she refused. Jason Sline, a manager, then received a call asking him to go to the restaurant. Around 9 or 9:30 p.m., Sline arrived at Leona's and discussed what happened with Ebenezer, Erika, and the servers. Sline then told Erika that she would have to work at a different location of Leona's Restaurant. When Erika declined the offer, Sline fired her. Erika told Sline that she understood and then said, "But f*** you Corey, Corey, f*** you" and left the restaurant.
¶ 7 Around midnight, Mastache and Twine were still at Leona's. The restaurant was closed. As Mastache was cleaning the kitchen, he saw three unknown men hit Ebenezer in a small kitchen hallway near the cash registers at the private back entrance of the restaurant. Mastache then heard three gunshots. Mastache went the front of the restaurant to find Twine, and when they returned to the kitchen, Ebenezer was lying next to a cash drawer on the floor. Ebenezer told Twine that he "just got ganked," which meant he had been robbed. Ebenezer later died from his injuries.
¶ 9 Paris Gosha is Erika's cousin and had been Lorenzo's friend since childhood. Gosha testified that he also was charged with the murder and armed robbery of Corey Ebenezer. In exchange for the State's agreement to drop the murder charges, Gosha agreed to testify against Erika and Lorenzo and plead guilty to the armed robbery charge. Gosha would receive a 30-year sentence (but understood that he would only serve half of it) and would be placed in a witness protection program. At the time of his testimony, Gosha was in the witness protection program in the Cook County jail, where he received various privileges, including a $35 weekly payment.
¶ 10 On the night of June 14, 2006, Gosha went to see friends at 54th and Peoria. Lorenzo came into the house and told him that Erika, who was in her car outside, wanted to speak with Gosha. Erika told Gosha that she had just been fired and wanted him "to beat her boss' ass." Gosha then gathered his younger brother, Demetrius (or "DJ"), and a friend named Anthony Macon to go with Erika and Lorenzo. Erika drove Lorenzo, Gosha, Macon, and DJ to Leona's and parked the car. As they waited, a man with a Jamaican accent approached the car three times and spoke with Erika about going into the restaurant. At one point, when the group was ready to enter the restaurant, the man told them to get back in the car. Gosha heard the man say that some people inside the restaurant with Ebenezer might help him fight.
¶ 11 After about two hours, Lorenzo, Gosha, Macon, and DJ entered the back entrance of Leona's. Lorenzo pointed a pistol at Ebenezer's face, and Gosha "grabbed some money" from the cash register. Lorenzo and Ebenezer began to struggle and a shot was fired. The men continued to wrestle until Macon came through the door and tried to break up the fight. Ebenezer slipped on the floor. Lorenzo then stood over him and shot him. The four men fled to Erika's car.
¶ 12 The next day, Gosha met with Lorenzo, Macon, and DJ at Gosha's house, where they watched news coverage about the shooting. Gosha did not see Lorenzo after that day. When Gosha first talked to police in August 2006, he told them he did not know anything. Gosha admitted his involvement in June 2007, after Macon had spoken to police about the incident.
¶ 14 Anthony Macon testified that he was at 54th and Halsted on June 14, 2006. Erika pulled up in her car, and Gosha and Lorenzo went to talk to her. Gosha and Lorenzo told Macon to "come on," and he got in the car with them. Lorenzo told Macon that they were going to Leona's because "some guy got her fired and they wanted to beat him up." Macon did not hear Erika say that they should rob the man. As Erika drove to the restaurant, Macon saw Lorenzo, who was seated next to him in the backseat, holding a small gun with a pearl handle.
¶ 15 After Erika parked her car, a man with an accent came and spoke to her. When he spoke with Erika a second time, she moved her car down the street and parked because it was time for the men to go inside. Erika told the group that the back door would be open. Macon headed to the front entrance while the others went to the back entrance. Macon then heard two gunshots coming from inside and headed to the back door. There, he saw Lorenzo, Gosha, DJ, and a man fighting. Macon tried to pull Gosha out of the struggle.
¶ 16 The group returned to Erika's car. Gosha got into the trunk while the others got in the backseat. Macon then heard Wilson say that he thought he killed the man inside the restaurant. The group returned to Gosha's house and met again there the next day.
¶ 17 Macon told police in July 2006 that he did not know Gosha or Lorenzo and did not know anything about the shooting. Two weeks later, Macon told detectives about the incident. Macon testified that he could not remember if, during a January 2007 interview with police, he stated that he did not know if Lorenzo had a gun until he got back in the car after the shooting. Macon explained that after giving the statements, he was never charged with any crime. Macon testified that neither the police nor the State's Attorney promised that Macon would not be charged if he gave a specific statement or testified a certain way.
¶ 19 Charles Wilson, the great-uncle of Lorenzo Wilson, testified for the State. Charles had lived in Gulfport, Mississippi, but he was currently in federal prison for a gun possession conviction in an unrelated case. Charles initially testified that he did not see his great-nephew in the courtroom, but after Lorenzo stood up, Charles acknowledged that Lorenzo was his great-nephew. When asked if he was in Chicago in June 2006, Charles testified that he did not recall and then indicated that he would "plead the Fifth." The State asked for a sidebar and indicated that it would grant use immunity to Charles in exchange for his testimony. The court signed a form adjudging Charles a material witness and ordering him to testify.
¶ 20 Outside the presence of the jury, the court told Charles that he could not plead the fifth amendment and that he would face contempt charges if he did not testify. Charles responded that he would take the punishment. The State then informed the court that it wished to confront Charles with three prior inconsistent statements. The State argued that all these prior statements were admissible under two statutes: the "regular prior inconsistent statement statute" (725 ILCS 5/115-10.1 (West 2008)) and the statute covering admissibility of prior statements when a witness refuses to testify despite a court order (725 ILCS 5/115-10.2 (West 2008)). Counsel for Lorenzo objected to the statements' admissibility under both statutes, but the court found them admissible as prior inconsistent statements under section 115-10.1.
¶ 21 After the jury returned, the State asked Charles about his prior statements: an audiotaped statement he gave to Sergeant Schlicht of the Gulfport police department in Mississippi on December 6, 2006; a signed handwritten statement Charles gave to Detective Lutzow of the Chicago police department and Assistant State's Attorney Martha Kross on December 19, 2006; and Charles's testimony before a grand jury on May 24, 2007. Charles stated either that he did not recall making the statements, he did not know if he made them, or he was "high on ...